We sincerely hope everyone is staying healthy. We understand that many organizations are adjusting their operations to respond to the challenges of the COVID-19 outbreak and for the protection of employees, including closing office facilities and directing employees to remotely work from home or another location. As a reminder, H-1B and E-3 authorization approved for foreign workers is specific to a number of issues including the employer, wage, work location and job duties.
In general, any location where an H-1B or E-3 employee is performing work should be covered by a U.S. Department of Labor certified Labor Condition Application (“LCA”), which includes posting and notice requirements. H-1B or E-3 employee whose home is within normal commuting distance of the normal place of employment should re-post the existing LCA (even though it does not specifically include their home address as a work location) for 10 consecutive business days to comply with notice and posting requirements, and the posting notices must be placed in the Public Access File when taken down.
Please contact the Foster Garvey Labor, Employment & Immigration team if you have any questions regarding this and other worksite-related obligations of an H-1B or E-3 employer.
H-1B cap filing season is fast approaching. U.S. employers who sponsor foreign workers for temporary H-1B work visas should start preparing now for the upcoming new H-1B cap electronic registration commencing this year on March 1, 2020.
What Is The H-1B Cap
The H-1B visa is the standard professional US work visa. There is a quota (or “cap”) each year on the number of new H-1B visas available. Specifically, there are 65,000 H-1B visas available annually with an additional 20,000 for US master’s degree holders. Individuals who have not previously held H-1B status are generally subject to this annual cap. Over the last 5+ years, this cap has been oversubscribed. When this occurs, the US Citizenship & Immigration Service (“USCIS”) opens the filing window for a specific period and accepts electronic registrations for new H-1Bs during that period. Presuming the number of applicants registered during that period exceeds the annual quota, then USCIS plans to run a random lottery to select the applicants who will be eligible for making the H-1B petition filing in the following 90 days.
On January 30, 2018, the Department of Homeland Security (DHS) issued a final rule revising the random selection process (commonly referred to as the annual “H-1B Lottery”) by which the U.S. Citizenship and Immigration Services (USCIS) selects new H-1B petitions for adjudication under the annual H-1B quota. The rule is effective April 1, 2019, with no major changes to employers for the upcoming FY20 H-1B filing season; however, the rule does impose a new electronic registration requirement starting next year (FY21).
U.S. Citizenship and Immigration Services (“USCIS”) has started returning H-1B petitions to employers whose cases were not selected in the recent H-1B lottery selection process. The USCIS reported that a total of 195,000 H-1B petitions were received during this year’s qualifying filing period, which began on April 2, 2018 and ended on April 6, 2018. Employers whose H-1B petition was not selected for allocation under the 2019 Fiscal Year H-1B quota will receive their paperwork back from the agency, including the uncashed filing fee checks, by regular mail. The quota (or “cap”) applies to individuals who have never held H-1B status before or who previously worked only for an H-1B exempt employer.
U.S. employers who sponsor foreign workers for temporary H-1B work visas should start preparing now for the upcoming H-1B cap filing season commencing this year on Monday, April 2, 2018. Employers should start identifying those first-time H-1B workers for which petitions will be filed during the first five business days in April. International students holding F-1 visas are the most common beneficiaries for these "quota subject" H-1B petitions.
On Monday, September 18, 2017, the U.S. Citizenship and Immigration Services (USCIS) announced that it would resume offering its 15-day Premium Processing service for any H-1B visa petition still pending that had been accepted under this Fiscal Year’s (FY) 2018 cap during the first five business days in April 2017. Premium Processing had been suspended for this and almost all other H-1B work visa categories since April 3, 2017.
A good business plan involves consideration of both short-term and long-term goals. Your plans should do the same for your management and business employees; getting them into the U.S. as you start or grow your business, and keeping the organization properly staffed as it succeeds. This occasional blog provides guidance regarding some of the most common and important employment-based U.S. immigration options.
In my previous blogs, I have written about transferred employees under the L status for up to seven years, and employment of Japanese citizens under the E status without the need to prove previous employment, and with the ability to maintain that status forever. Today’s blog is about options in which the government is more heavily involved, such as the wages paid and the decision-making process.
“Specialty Occupations” present a great option for U.S. employment of transferred employees or new hires. The general rule for these jobs is that the job requires a specific type of college degree or the education and/or experience equivalent of that degree, and the person has that degree or equivalent. Classically, this applies to jobs such as accountants, engineers, and computer professionals, among others. It can be difficult to obtain approval for jobs that some people (and the government) don’t normally associate with a particular degree, such as Sales Managers, Market Research Analysts, or Public Relations Specialists. But it can be worth exploring.
H-1B: Available to Citizens of All Countries
The current challenge with the H-1B classification is that only people who already have that classification can be hired; a person who has not already been approved for employment with that classification can’t get it until October 2016 unless the employer or employee has exemption from the numerical limitation. Anyone hoping to be considered for one of the H?1B’s to be allocated at that time should plan to submit the filing on April 1, 2016, the first day on which filings will be accepted. Only 78,200 new H-1B’s are available for each fiscal year, and they can all be allocated within as little as a few days or weeks.
H-1B1: Available to Citizens of Chile and Singapore
The H-1B1 status, almost identical to the H-1B referenced above, is available to citizens of Chile, who have 1,400 available each year, and Singapore, who have 5,400 available each year. To date, the government has never allocated the maximum available each year, so they are available throughout the year.
E-3: Available to Citizens of Australia
Australian citizens have a virtual equivalent to the H-1B in the form of the E-3 status, which is open for applications year-round because the 10,500 limit has never been fully approved.
All three of these classifications require multiple government filings and approvals, starting in the U.S. with the Department of Labor certifying labor conditions and wages. After that, the processes diverge. H?1B status must be approved in the U.S. by U.S. Citizenship and Immigration Services (USCIS). The H-1B1 and the E-3 statuses can be approved at U.S. consulates as a part of the visa application or, for a person already in the U.S. in some other status, by USCIS. Government-charged filing fees in the U.S. start as low as $825 for an H-1B1 or an E-3, and $1,575 for an H-1B. Visa fees are in addition to those charges. There can be a difference between the time period approved for the “status,” and the time period for the visa, which is the travel document associated with the status. Status approval of an H-1B1 is for up to one year at a time and, for an E-3, it is for up to two years at a time. Both are renewable indefinitely. An H-1B status can only be approved for as many as six years, in three year increments.
For more information, see:
The Immigration Group is available to work with you as you consider employment-based immigration options for you or your employees.
Foster Garvey’s International practice group comprises a cross-disciplinary group of attorneys practicing in areas ranging from business transactions, immigration, maritime, government regulatory work, transportation and logistics and estate planning. The group members include bilingual and multicultural attorneys who are well-versed in handling these subject matters in a cross-border context. A number of attorneys have been actively practicing in the international arena since the early 1970s.